THE SHADOWS OF FUTURE GENERATIONS
MATTHEW W. WOLFE†
ABSTRACT
This Note addresses the twin problems of political short-termism
and intergenerational equity. Although scholars have discussed these
concerns extensively, few scholars have developed proposals to
modify democratic institutions—particularly legislatures—to better
consider posterity’s interests. This Note critiques one such set of
proposals by several environmental ethicists for including posterityoriented legislators in present-generation legislatures. It then proposes
a system that ties the long-term outcomes of legislators’ policy
preferences to their pension plans by creating a new commodities
market that values the decisions legislators make and their effect on
posterity.
‘Tis not the concern of a day, a year, or an age; posterity are
virtually involved in the contest, and will be more or less
1
affected, even to the end of time, by the proceedings now.
INTRODUCTION
New Orleans, Louisiana is situated largely below sea level
between the Mississippi River and Lake Pontchartrain.2 Its geography
Copyright © 2008 by Matthew W. Wolfe.
† Duke University School of Law, J.D. expected 2008; Duke University Sanford Institute
of Public Policy, M.P.P. expected 2008; University of Rochester, B.A. 2003. I thank Professor
Paul Carrington for reviewing an earlier draft of this Note. I am also grateful for the extensive
feedback from Michael Rosenberg, Erin Blondel, and Jeffrey Chemerinsky and the careful
work of the editors of the Duke Law Journal. I dedicate this Note to my former students, my
present children, and my future one(s).
1. THOMAS PAINE, COMMON SENSE 18 (Stanley Appelbaum & Ronald Herder eds.,
Dover Publ’ns, Inc. 1997) (1776).
2. GREATER NEW ORLEANS CMTY. DATA CTR., NEW ORLEANS ELEVATION BY
NEIGHBORHOOD WITH MAJOR ROADS (2005), available at http://www.gnocdc.org/maps/PDFs/
neworleans_elevation.pdf.
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3
naturally creates the potential for flooding, a risk that the region’s
susceptibility to frequent hurricanes exacerbates.4 Thus, New
Orleans’s natural environment invites disaster, as destructive
5
hurricanes throughout the city’s history have demonstrated. A levee
system was constructed in the 1940s to provide better protection to
the city, but three subsequent hurricane strikes indicated that New
6
Orleans remained vulnerable to flooding. After each disaster,
politicians promised to prevent a similar catastrophe, and each time
they failed to follow through and adequately fix the levees.7 An
assessment of the levee system conducted after Hurricane Katrina
concluded: “New Orleans has now been flooded by hurricanes six
times over the past century; in 1915, 1940, 1947, 1965, 1969, and 2005.
8
It should not be allowed to happen again.”
According to a White House report evaluating its aftermath and
the implications for disaster preparedness relief, “Hurricane Katrina
9
was the most destructive natural disaster in U.S. history.” The
estimated property damage was $96 billion with 300,000 homes made
uninhabitable; 118 million cubic yards of debris were left behind; an
estimated 1,330 people lost their lives to the storm and ensuing flood
(with many at the time of the report still missing); the survivors, many
displaced, have spent years piecing their lives back together. New
Orleans is not the same—and may never be.10
3. WHITE HOUSE, THE FEDERAL RESPONSE TO HURRICANE KATRINA: LESSONS
LEARNED 24 (2006), available at http://www.whitehouse.gov/reports/katrina-lessons-learned.pdf.
4. See 1 R.B. SEED ET AL., INVESTIGATION OF THE PERFORMANCE OF THE NEW
ORLEANS FLOOD PROTECTION SYSTEMS IN HURRICANE KATRINA ON AUGUST 29, 2005, ch. 4,
at 9 (2006), available at http://www.ce.berkeley.edu/~new_orleans/report/VOL_1.pdf (“Since
1759, 172 hurricanes have struck southern Louisiana. Of these, 38 have caused flooding in New
Orleans, usually via Lake Pontchartrain. Some of the more notable events have included: 1812,
1831, 1860, 1893, 1915, 1940, 1947, 1965, 1969, and 2005.” (citation omitted)).
5. Id. ch. 4, at 10–11.
6. Id. ch. 4, at 11–12.
7. See, e.g., id. ch. 15, at 2 (“The northeast flank of the St. Bernard/Ninth Ward basin’s
protecting ‘ring’ of levees and floodwalls was incomplete at the time of Katrina’s arrival. The
critical 11 mile long levee section fronting ‘Lake’ Borgne . . . was being constructed in stages,
and funding appropriation for the final stage had long been requested . . . but this did not arrive
before Katrina struck; as a result large portions of this critical levee frontage were several feet
below final design grade.”).
8. Id. at xxv; see also WHITE HOUSE, supra note 3, at 9 (“By any measure, Hurricane
Katrina was a national catastrophe. Similar to the images of grief and destruction on September
11, 2001, the images of suffering and despair from Hurricane Katrina are forever seared into the
hearts and memories of all Americans. Those painful images must be the catalyst for change.”).
9. WHITE HOUSE, supra note 3, at 5.
10. Id. at 7–9.
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As the Times-Picayune, New Orleans’s local newspaper,
11
surmised, “[n]o one can say they didn’t see it coming.” The paper
published a five-part series predicting this type of disaster in 2002.12
Even the Federal Emergency Management Agency (FEMA)
recognized this threat as one of the top three most worrisome
scenarios in early 2001.13 Adequate measures were not taken to
prevent the tragedy. Thus, when Hurricane Katrina hit, the levee
14
system was still defective.
In the aftermath of Hurricane Katrina, many policymakers and
scholars attempted to explain the underlying political and social
15
conditions that contributed to the catastrophe. Even though they
recognized that the levee system could fail in the event of another
16
hurricane, past generations ignored calls after each hurricane for
11. Bill Walsh, Bruce Alpert & John McQuaid, Feds’ Disaster Planning Shifts Away from
Preparedness, TIMES-PICAYUNE (New Orleans), Aug. 31, 2005, at A10, available at http://www.
nola.com/katrina/pages/. On top of the masthead for this issue, a tag read “Katrina: The Storm
We’ve Always Feared.” Id.
12. John McQuaid & Mark Schleifstein, Exposure’s Cost, TIMES-PICAYUNE (New
Orleans), June 25, 2002, at A1; John McQuaid & Mark Schleifstein, In Harm’s Way, TIMESPICAYUNE (New Orleans), June 23, 2002, at J2; John McQuaid & Mark Schleifstein, Shifting
Tides, TIMES-PICAYUNE (New Orleans), June 26, 2002, at A14; John McQuaid & Mark
Schleifstein, Tempting Fate, TIMES-PICAYUNE (New Orleans), June 26, 2002, at A1; John
McQuaid & Mark Schleifstein, The Big One, TIMES-PICAYUNE (New Orleans), June 24, 2002, at
A1; see also Jim Wilson, New Orleans is Sinking, POPULAR MECHANICS, Sept. 2001, at 42, 42,
available at http://www.popularmechanics.com/science/research/1282151.html (“During a strong
hurricane, the city could be inundated with water blocking all streets in and out for days, leaving
people stranded without electricity and access to clean drinking water. Many also could
die . . . .”).
13. See Eric Berger, New Orleans Faces Doomsday Cenario [sic], HOUSTON CHRON., Dec.
1, 2001, http://www.chron.com/disp/story.mpl/nation/1153609.html (“[E]arlier this year [FEMA]
ranked the potential damage to New Orleans as among the three likeliest, most castastrophic
[sic] disasters facing this country.”); see also Jia-Rui Chong & Hector Becerra, California
Earthquake Could Be the Next Katrina, L.A. TIMES, Sept. 8, 2005, at A1 (“[I]n August 2001 . . .
[FEMA] . . . discussed the three most likely catastrophes to strike the United States. First on the
list was a terrorist attack in New York. Second was a super-strength hurricane hitting New
Orleans. Third was a major earthquake on the San Andreas fault.”).
14. See generally SEED ET AL., supra note 4, ch. 2 (noting that the levees were “virgin”
levees constructed on swampy foundation soil and were not completed by the time that
Hurricane Katrina struck).
15. See, e.g., WHITE HOUSE, supra note 3 (policymakers); Symposium, Thirty-Sixth Annual
Administrative Law Issue, 56 DUKE L.J. 1 (2006) (scholars).
16. See Hurricane Katrina in New Orleans: A Flooded City, a Chaotic Response: Hearing
Before the S. Comm. on Homeland Security & Governmental Affairs, 109th Cong. 7 (2005)
(statement of Marty Bahamonde, Regional Director, Federal Emergency Management Agency)
(labeling Hurricane Katrina as “the worst-case scenario that everyone had always talked about
regarding the City of New Orleans”); Mark Fischetti, The Drowning of New Orleans, SCI. AM.,
Oct. 2001, at 76, 78 (warning that only an enormous engineering overhaul could prevent a
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17
better protection and did not fortify the levee system. Politicians
responded with short-term relief rather than measures that would
prevent the next disaster.18 The disparity between long-term social
needs and short-term political will contributed to Hurricane Katrina’s
19
eventual devastation.
catastrophic flood from engulfing New Orleans); John McQuaid & Mark Schleifstein, Evolving
Danger, TIMES-PICAYUNE (New Orleans), June 23, 2002, at J12 (“That margin of error is
critical because a storm that pushes the lake any higher can force water over the top of the
levees and inundate the city. The water could rise 20 feet or higher. People would drown,
possibly in great numbers.”).
17. Recognizing this problem, then-Homeland Security Advisor Frances Townsend wrote
of Hurricane Katrina:
We must expect more catastrophes like Hurricane Katrina—and possibly even worse.
In fact, we will have compounded the tragedy if we fail to learn the lessons—good
and bad—it has taught us and strengthen our system of preparedness and response.
We cannot undo the mistakes of the past, but there is much we can do to learn from
them and to be better prepared for the future. This is our duty.
WHITE HOUSE, supra note 3, at 65; see also Russell S. Sobel & Peter T. Leeson, Government’s
Response to Hurricane Katrina: A Public Choice Analysis, 127 PUB. CHOICE 55, 68 (2006)
(noting the widespread recognition of the inability of the New Orleans levee system to
withstand a hurricane and attributing the failure to invest in a better system to “political
shortsightedness bias”).
18. See SEED ET AL., supra note 4, ch. 2, at 6 (“Construction of the first phase of the levees
along this frontage began in the late 1960’s. The last major work in this area prior to Katrina
had been the construction of the third phase, in 1994-95. Since that time, the USACE had been
waiting for Congressional appropriation of the funds necessary to construct the final stage . . . .
Now it is too late.”); Robert J. Meyer, Why We Under-Prepare for Hazards, in ON RISK AND
DISASTER: LESSONS FROM HURRICANE KATRINA 153, 156–57 (Ronald J. Daniels, Donald F.
Kettl & Howard Kunreuther eds., 2006) (“A case example of such a truncated learning process
might be found in the repeated decisions by state and federal governments to under-fund flood
control projects in greater New Orleans prior to Hurricane Katrina. . . . Reducing funding
(combined with cost overruns) forced planned dates of completion to be postponed . . . . In
addition, recommendations made in 1982 to upgrade the original plan for the height of the
levees around New Orleans was never funded.”); see also Howard Kunreuther, Disaster
Mitigation and Insurance: Learning from Katrina, ANNALS AM. ACAD. POL. & SOC. SCI., Mar.
2006, at 208, 209 (“Extensive evidence indicates that residents in hazard-prone areas do not
undertake loss prevention measures voluntarily.”).
19. See SEED ET AL., supra note 4, ch. 1, at 3–4 (concluding that “global ‘organizational’
and institutional problems associated with the governmental and local organizations responsible
for the design, construction, operation, maintenance and funding of the overall flood protection
system” contributed to the catastrophe of Hurricane Katrina). Commentators have noted the
dangerous disconnect between short-term political will and long-term needs:
This failure to invest current resources for future benefit can be explained by the
widely-recognized “shortsightedness” bias in government decision making. Political
decision makers are biased toward current over future benefits. Perhaps nothing
illustrates this more than the lack of investments made in strengthening the levees
themselves in the years—even decades—prior to Katrina. The levee system in New
Orleans was widely-recognized as incapable of sustaining trauma from a major
hurricane.
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Political rhetoric boasting that a decision taken in the present
will have a positive impact on the lives of generations to come is
appealing. But as the example of New Orleans demonstrates, political
rhetoric frequently surpasses political action. Levees may protect
present-generation voters, but future generations also can enjoy the
benefit of a vibrant, well-protected city that has not suffered a
catastrophe like Hurricane Katrina. That future generations will
benefit only if current generations pay is an example of an
intergenerational externality,20 which leads to an underinvestment in
disaster protection. After all, future generations do not vote for the
present-day politicians who make the decisions, even though the
decisions require a calculated tradeoff among different generations.
Politicians,21 ethicists,22 scholars,23 and everyday citizens24 often
champion the needs of future generations on issues from hurricane
protection to climate change and from pension reform to public
education. Yet policymaking decisions often do not adequately
Sobel & Leeson, supra note 17, at 68. The issue of a levee system inadequate to withstand a
strong hurricane is not a local one. See, e.g., Samantha Young, FEMA: Calif. Levees Worse Than
Thought, WASHINGTONPOST.COM, Jan. 4, 2007, http://www.washingtonpost.com/wp-dyn/
content/article/2007/01/03/AR2007010302037.html (“Federal and state governments are taking
another look at widespread flood risks in the wake of Hurricane Katrina.”).
20. One economics text defines “externality” as “an effect of one economic actor’s
activities on another actor’s well-being that is not taken into account by the normal operations
of the price system.” WALTER NICHOLSON, INTERMEDIATE MICROECONOMICS AND ITS
APPLICATION 530 (9th ed. 2004). In this case, the actors whose well-being is not being
considered in the price system are future persons.
21. See President George W. Bush, President Bush Discusses the Economy and the War on
Terror (Oct. 16, 2003), available at http://www.whitehouse.gov/news/releases/2003/10/200310163.html (“I came to this office to confront problems directly and forcefully, not to pass them on
to future Presidents or future generations.”); President George W. Bush, State of the Union
Address (Feb. 2, 2005), available at http://www.whitehouse.gov/news/releases/2005/02/2005020211.html) (“To build the prosperity of future generations, we must update institutions that were
created to meet the needs of an earlier time.”).
22. See infra Part I.A.
23. See Anthony D’Amato, Do We Owe a Duty to Future Generations to Preserve the
Global Environment?, 84 AM. J. INT’L L. 190, 190 (1990) (“A common assumption underlying
nearly every book or essay on the global environment is that the present generation owes a duty
to generations yet unborn to preserve the diversity and quality of our planet’s life-sustaining
environmental resources.”); David A. Weisbach & Cass R. Sunstein, Introduction to Symposium
on Intergenerational Equity and Discounting, 74 U. CHI. L. REV. 1, 1 (2007) (“Most analysts . . .
take the position future generations should count, and most likely count equally to those
currently alive.”).
24. See HARWOOD GROUP, YEARNING FOR BALANCE (1995), http://www.iisd.ca/consume/
harwood.html (reporting survey results that indicate “Americans are alarmed about the
future. . . . [and] particularly concerned about the implications of our skewed priorities for
children and future generations—they see worse trouble ahead if we fail to change course”).
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represent these needs. Despite general desires to help the future,
short-term political interests tend to prevail in specific policy
decisions. In this respect, concerns for posterity resemble basic
constitutional commitments, such as the right to a trial by a jury or
the freedom of speech. Most Americans support these commitments
in general25 but might reject them in particular circumstances.26 To
prevent a society from succumbing to the sirens’ call to do what is
expedient rather than what is right, a constitution ties the country and
its leaders to a legal mast.27 For the interests of future generations in
contemporary political decisionmaking, however, no such mast exists.
This Note’s ultimate goal is to provoke legislatures to create
institutional arrangements that tie legislators to the proverbial mast,
translating their asserted commitment to posterity into action.
Legislators require an incentive to legislate for future generations’
needs despite the temptation of political expediency. The question
remains how to design this arrangement to best represent the
interests of future generations without completely sacrificing the
28
present generation’s political autonomy or other shared values.
25. See PUB. AGENDA FOR THE NAT’L CONSTITUTION CTR., KNOWING IT BY HEART:
AMERICANS CONSIDER THE CONSTITUTION AND ITS MEANING 9–10 (2002) (“As a whole, the
American public recognizes the Constitution as a document that sets an expansive goal of
freedom . . . . Virtually all (91%) believe that the Constitution’s fundamental purpose is ‘to
protect and serve the interests of all people, regardless of their wealth or power.’”).
26. For example, the concept of due process is almost universally supported in the abstract,
but the extent to which it should be extended to an “enemy combatant” becomes far more
contentious in the wake of a terrorist attack. See PEW RESEARCH CTR. FOR THE PEOPLE & THE
PRESS, AMERICA’S PLACE IN THE WORLD 2005, at 7 (2005), available at http://people-press.org/
reports/pdf/263.pdf (“The public is much more tolerant of the use of torture against suspected
terrorists—46% say it can be often or sometimes justified, while 49% believe it is rarely or
never justified.”).
27. See, e.g., JON ELSTER, ULYSSES AND THE SIRENS: STUDIES IN RATIONALITY AND
IRRATIONALITY 93–96 (1984) (“[C]onstitutional democracy is founded upon a set of stable
institutions that cannot be undone at will once established.”). For the original story of Odysseus
and his plot to avoid the songs of the Sirens and thus certain death, see HOMER, THE ODYSSEY:
THE STORY OF ODYSSEUS 138–47 (W.H.D. Rouse trans., Penguin Group 1937) (n.d.).
28. These values might include, for example, accountability, Alícia Adserà et al., Are You
Being Served? Political Accountability and Quality of Government, 19 J.L. ECON. & ORG. 445,
445–49 (2003), fairness, JOHN RAWLS, POLITICAL LIBERALISM 11–15 (1993), representation,
REPRESENTATION 3–54 (J. Roland Pennock & John W. Chapman eds., 1968), and sovereignty
of the people, ALEXIS DE TOCQUEVILLE, DEMOCRACY IN AMERICA 55–59 (Alfred A. Knopf,
Inc. 1994) (1835). This type of constitutional revision would inevitably involve a tradeoff, but it
need not require a complete delegation of political power by the citizens to an actor who exists
without any temporally based interest, such as an official not accountable to the people.
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Accepting that legislatures have some obligation to future
29
generations, how can they fulfill that obligation?
In the American system of government, future generations have
30
limited representation. In the judicial branch, litigants have
experimented with representing posterity in judicial processes,
31
although the results have been disappointing. In the executive
branch, the interests of future generations exercise some influence in
agency rulemaking.32 The agency setting occasionally provides a
33
forum for the representation of future costs and benefits, but the
29. In keeping with Judge Richard Posner’s call for a more fervent interdisciplinary
dialogue in legal scholarship, this evaluation should not come solely from environmental
ethicists or political theorists but also from legal scholars who have a capacity to analyze how
such a proposal would fit into the traditional constitutional framework. See Richard A. Posner,
Law, Knowledge, and the Academy: Legal Scholarship Today, 115 HARV. L. REV. 1314, 1324
(2002) (“[I]nterdisciplinary legal scholarship is still far from converging with the standard
academic model, and the progress toward that convergence is slow.”); see also DE
TOCQUEVILLE, supra note 28, at 272–80 (describing lawyers as civic leaders); Jonathan L. Entin,
The Law Professor as Advocate, 38 CASE W. RES. L. REV. 512, 514 (1987) (“Because the law
occupies a uniquely powerful niche in the nation’s social and political structure, law professors
have enjoyed unusual access to the fora in which civic debate occurs.”). Legal scholars might
also be able to “peel away the veil of academia and plant scholarship firmly in a real-world
setting.” Clay Calvert & Robert D. Richards, Alan Isaacman and the First Amendment: A
Candid Interview with Larry Flynt’s Attorney, 19 CARDOZO ARTS & ENT. L.J. 313, 353 (2001).
30. For a discussion of how the executive and judicial branches represent, or at least
attempt to represent, posterity, see Matthew W. Wolfe, Posterity’s Role in Judicial and
Executive Settings: Its Promise and Shortfalls (working paper, on file with the Duke Law
Journal).
31. See, e.g., Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992) (reciting the standing
requirement that the plaintiff’s harm be “actual or imminent” rather than “‘conjectural’ or
‘hypothetical’” (quoting Whitmore v. Arkansas, 495 U.S. 149, 155 (1990))); see also Raymond
A. Just, Comment, Intergenerational Standing Under the Endangered Species Act: Giving Back
the Right to Biodiversity After Lujan v. Defenders of Wildlife, 71 TUL. L. REV. 597, 622 (1996)
(“[T]he United States Supreme Court, through application of the same constitutional standing
requirements which frustrated the plaintiffs in Lujan, likely would limit the effectiveness of any
legislatively created right of future generations to environmental preservation.”).
32. See Exec. Order No. 12,866, § 1, 3 C.F.R. 638, 639 (1993), reprinted in 5 U.S.C. § 601
(2000) (requiring agencies to consider the impact of rules on future generations).
33. The Office of Management and Budget, for example, identified this analytical
technique:
For transparency’s sake, [the analysts] should state in their report what assumptions
were used, such as the time horizon for the analysis and the discount rates applied to
future benefits and costs. . . . The ending point [of the calculation of benefits and
costs] should be far enough in the future to encompass all the significant benefits and
costs likely to result from the rule. . . . Future citizens who are affected by such
choices cannot take part in making them, and today’s society must act with some
consideration of their interest.
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short time horizons of legislators (who define the role of agencies and
exercise oversight) or political appointees (who run these agencies)
34
limit the effectiveness of agencies in protecting posterity.
The legislature remains the best hope for protecting future
generations. But because legislators are directly and regularly
accountable to voters, they may be limited in sincerely considering
future generations in decisionmaking.35 Legislatures, however, make
policy decisions that have the most direct effect on future
generations. They answer such crucial questions as whether it is
worthwhile to spend more money on levees in New Orleans; how
much should Social Security benefits for present-day senior citizens
be (and thus, how much burden should the legislature heap on future
taxpayers); what are the objectives of the country’s public education
system; what should be done about global warming? Finally, because
the legislature is the branch best suited to represent the people,36
posterity representation seems natural. Yet the political
representation of future generations in the legislative branch has not
been seriously considered, much less attempted, beyond three related
proposals by environmental ethicists.37
This Note converts the existing empty rhetoric about future
generations into a concrete solution. First, it critiques the
environmental ethicists’ proposals to elect future-oriented legislators.
It then proposes a system that creates a market for successful longterm policy outcomes and ties the legislators’ pension system to the
success of this market. If a major obstacle to realizing posterity
OFFICE OF MGMT. & BUDGET, EXECUTIVE OFFICE OF THE PRESIDENT, OMB CIRCULAR A-4,
REGULATORY ANALYSIS 3, 31, 35 (2003), available at http://www.whitehouse.gov/OMB/
circulars/a004/a-4.pdf.
34. See Tyler Cowen, Caring About the Distant Future: Why It Matters and What It Means,
74 U. CHI. L. REV. 5, 6 (2007) (“When people are voting or choosing for all future generations as
a whole, they often behave quite selfishly. Political time horizons tend to be low, often
extending no further than the next election or the next media cycle.”).
35. See infra Part I.B.
36. THE FEDERALIST NO. 52, at 327 (James Madison) (Clinton Rossiter ed., 1961) (“As it is
essential to liberty that the government in general should have a common interest with the
people, so it is particularly essential that the [legislative] branch . . . should have an immediate
dependence on, and an intimate sympathy with, the people.”).
37. See infra Part II.
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representation is that there is no way to represent posterity in the
38
legislature, then this Note fills that vacuum.
This Note proceeds in three parts. Part I examines how
39
incentives to focus on short-term concerns cause present-generation
decisionmakers to fail to adequately consider future generations and
why this intergenerational inequity should concern society. Part II
summarizes three environmental ethicists’ proposals to designate
some number of legislators as representatives of future generations
40
(F-representatives) to represent posterity in the legislature. Part III
critiques these proposals and then suggests an alternate way to
encourage lawmakers to legislate for posterity’s interests by tying
congressional pensions to the long-term performance of their policy
preferences. By holding legislators accountable for their claims of a
policy’s benefits to futurity, legislators would better consider the
needs of future generations in their political calculations.
38. Professors James Buchanan and Gordon Tullock have addressed the role of morality in
policymaking:
Our quarrel with those who would rely primarily on the moral restraint of individuals
to prevent undue exploitation of individuals and groups through the political process
is . . . at base an empirical one. The assessment of the nature of man himself will, or
should, determine the respective importance that is placed on institutionalconstitutional restraint and on moral limitations on the behavior of individuals in
political society.
JAMES M. BUCHANAN & GORDON TULLOCK, THE CALCULUS OF CONSENT: LOGICAL
FOUNDATIONS OF CONSTITUTIONAL DEMOCRACY 305–06 (1962). This Note does not evaluate
the more radical or more pragmatic proposals that have been voiced that in some way address
the issues of intergenerational inequity. See, e.g., ROBYN ECKERSLEY, THE GREEN STATE:
RETHINKING DEMOCRACY AND SOVEREIGNTY 111–12 (2004) (proposing a radical shift from
liberal to “ecological democracy” in which “the opportunity to participate or otherwise be
represented in the making of risk-generating decisions should literally be extended to all those
potentially affected, regardless of social class, geographic location, nationality, generation, or
species”); DANIEL A. FARBER, ECO-PRAGMATISM 9–11 (1999) (advocating a pragmatic
“approach to environmental problems, in which economic analysis is useful, but not
controlling”).
39. This Note refers to this issue interchangeably as political short-termism or policy
myopia. For a general introduction to this phenomenon, see Toke S. Aidt & Jayasri Dutta,
Policy Myopia and Economic Growth, 23 EUR. J. POL. ECON. 734 (2007); Iconio Garri, Political
Short-Termism: A Possible Explanation (Università Cattolica del Sacro Cuore, Working Paper
No. 48, 2007), available at http://www.unicatt.it/Istituti/TeoriaEconomica/Quaderni/itemq0748.
pdf.
40. See Kristian Skagen Ekeli, Giving a Voice to Posterity—Deliberative Democracy and
Representation of Future People, 18 J. AGRIC. & ENVTL. ETHICS 429, 434 (2005) (advocating to
reserve seats in legislative assemblies for future generation representatives).
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I. THE PROBLEMS OF INTERGENERATIONAL
INEQUITY AND POLITICAL SHORT-TERMISM
Almost any newspaper clipping evinces the problem of
intergenerational inequity; from climate change to failing schools,
political leaders fail to adequately consider future interests in
evaluating policy options.41 But this myopia is not the product of a
lack of a concern for children or future inhabitants of Earth; instead,
it is the result of institutional constraints that encourage political
leaders to prioritize the short-term needs of voters. Such an
institutional arrangement conflicts with a moral commitment to
future generations. As President Lincoln pronounced:
[W]e cannot escape history. We . . . will be remembered in spite of
ourselves. No personal significance or insignificance can spare one
or another of us. The fiery trial through which we pass will light us
down in honor or dishonor to the latest generation. . . . We, even we
42
here, hold the power and bear the responsibility.
This Part sets out the moral argument for a commitment to future
generations and then moves on to examine how policymaking
exacerbates intergenerational inequity and how the institutional
configuration of liberal democracies promotes this result.
A. The Merits of a Moral Commitment to Posterity
Moral arguments for a commitment to future generations are
plentiful and diverse. How society goes about defining its moral
commitment is ultimately important in developing a legislative
mechanism to represent future generations. This Section outlines
some of the arguments for recognizing the interests of future
generations.
Parents generally desire for their children to be happy and are
willing to sacrifice to secure this happiness.43 The happiness of these
children, in turn, depends on the happiness of their children, whose
happiness depends on the happiness of their children, and so on down
the family tree. People thus have an interest in their great-great-great
41. See infra Part I.B.
42. Abraham Lincoln, Second Annual Message (Dec. 1, 1862), in 7 A COMPILATION OF
THE MESSAGES AND PAPERS OF THE PRESIDENTS 3327, 3343 (James D. Richardson ed., 1897).
43. See Jan Narveson, Future People and Us, in OBLIGATIONS TO FUTURE GENERATIONS
38, 57 (R.I. Sikora & Brian Barry eds., 1978) (“Most people claim to desire a better lot in life for
their offspring than themselves . . . .”).
2008]
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1907
grandchildren’s lives. But this argument does not explain why people
should care about future generations rather than only their
descendants.
Kantian ethics also promotes concern for future generations.
Immanuel Kant’s dictate—that humans be treated as ends in
themselves and not merely as means44—includes posterity. Because
human beings are inherently interested in achieving this ideal,45
“[t]hey have a duty to posterity simply because only posterity can
46
realise that ideal.”
John Rawls similarly advocates a moral obligation to future
generations in A Theory of Justice, but his concern for posterity is
more focused than Kant’s, because he advocates passing on a greater
amount of cultural capital than the present generation received from
47
its ancestors. Rawls derives this belief from the notion that those in
the “original position”48 “are understood to belong to ‘any’ and ‘all’
generations.”49 Under Rawls’ theory, “[e]ach generation must not
only preserve the gains of culture and civilization, and maintain intact
those just institutions that have been established, but it must also put
aside in each period of time a suitable amount of real capital
50
accumulation.” This accumulation of capital would continue until a
44. IMMANUEL KANT, THE METAPHYSICS OF MORALS 56 [Ak. 231] (Mary Gregor trans.,
Cambridge Univ. Press 1991) (1797); see also IMMANUEL KANT, FOUNDATIONS OF THE
METAPHYSICS OF MORALS 86 (Lewis White Beck ed. & trans., Univ. of Chicago Press 1950)
(1785) (“[E]very rational being exists as an end in himself and not merely as a means to be
arbitrarily used by this or that will.”). For a brief summary of Kant’s ideal theory, see Sarah
Williams Holtman, Kant, Ideal Theory, and the Justice of Exclusionary Zoning, 110 ETHICS 32,
35–39 (1999).
45. IMMANUEL KANT, The Contest of Faculties, in POLITICAL WRITINGS 176, 182 (Hans
Reiss ed., H.B. Nisbet trans., 2d ed. 1991) (1970).
46. John Passmore, Conservation, in RESPONSIBILITIES TO FUTURE GENERATIONS 45, 50
(Ernest Partridge ed., 1981).
47. Id. at 52.
48. Rawls’s “original position” is
a purely hypothetical situation characterized so as to lead to a certain conception of
justice. Among the essential features of this situation is that no one knows his place in
society, his class position or social status . . . his intelligence, strength, and the
like. . . . The principles of justice are chosen behind [this] veil of ignorance. . . . Since
all are similarly situated and no one is able to design principles to favor his particular
condition, the principles of justice are the result of a fair agreement or bargain.
JOHN RAWLS, A THEORY OF JUSTICE 11 (rev. ed. 1999). According to Rawls, just rules are
those that would be chosen from the original position. Id.
49. Ernest DeAlton Partridge, Jr., Rawls and the Duty to Posterity (Aug. 1976)
(unpublished Ph.D. dissertation, University of Utah) (on file with the Duke Law Journal).
50. RAWLS, supra note 48, at 252.
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51
steady state of just institutions has been reached. Thus, a
generation’s temporal position does not give it a moral claim over
other generations’ interests simply because the other generations
52
come later.
A commitment to future generations also lines up with the
53
theory of sustainability in environmental economics. Professor Edith
Brown Weiss defines this norm in the following way:
The human species holds the natural and cultural resources of the
planet in trust for all generations of the human species. . . . This
planetary trust obligates each generation to preserve the diversity of
the resource base and to pass the planet to future generations in no
worse condition than it receives it. Thus, the present generation
serves both as a trustee for future generations and as a beneficiary of
54
the trust.
51. See Richard A. Epstein, Justice Across the Generations, 67 TEX. L. REV. 1465, 1465
(1998) (summarizing this phenomenon).
52. According to Rawls
[i]t is a natural fact that generations are spread out in time and actual economic
benefits flow only in one direction. This situation is unalterable, and so the question
of justice does not arise. What is just or unjust is how institutions deal with natural
limitations and the way they are set up to take advantage of historical possibilities.
Obviously if all generations are to gain (except perhaps the earlier ones), the parties
must agree to a savings principle that insurers that each generation receives its due
from its predecessors and does its fair share for those to come. The only economic
exchanges between generations are, so to speak, virtual ones, that is, compensating
adjustments that can be made in the original position when a just savings principle is
adopted.
RAWLS, supra note 48, at 254; see also BRUCE ACKERMAN, SOCIAL JUSTICE IN THE LIBERAL
STATE 203 (1980) (“[A]ll citizens are at least as good as one another regardless of their date of
birth.”).
53. See Edith Brown Weiss, The Planetary Trust: Conservation and Intergenerational
Equity, 11 ECOLOGY L.Q. 495, 498 (1984) (“Our capacity to harm the environment globally
forces us for the first time to be concerned at a global level with survival of the natural and
cultural heritage that we pass to future generations.”).
54. Id. at 498–99. Professor Brown Weiss further develops this planetary trust concept in
her book, IN FAIRNESS TO FUTURE GENERATIONS: INTERNATIONAL LAW, COMMON
PATRIMONY, AND INTERGENERATIONAL EQUITY (1989), which has stimulated much debate,
see, e.g., Paul A. Barresi, Beyond Fairness to Future Generations: An Intragenerational
Alternative to Intergenerational Equity in the International Environmental Arena, 11 TUL.
ENVT’L L.J. 59 (1997) (critiquing Weiss’ argument); Edith Brown Weiss, A Reply to Barresi’s
“Beyond Fairness to Future Generations,” 11 TUL. ENVT’L L.J. 89 (1997) (responding to
Barresi’s article); see also Chairman of World Comm’n on Env’t and Dev., Our Common
Future, at 24, delivered to the General Assembly, U.N. Doc. A/42/427 (Aug. 4, 1987) [hereinafter
BRUNDTLAND REPORT], available at http://www.worldinbalance.net/pdf/1987-brundtland.pdf
(offering another definition of “sustainability” as development that “meets the needs of the
present without compromising the ability of future generations to meet their own needs”).
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There are also a number of arguments against awarding rights to
or even recognizing the interests of future generations yet unborn.
First, predictive capabilities erode as the predictor looks further into
55
the future. Second, predictions about what the future will be like can
be empirically falsified.56 Third, the number of individuals in any
given future generation is indeterminate, and the existence of any
57
given future individual is contingent upon many factors. Fourth, it is
difficult to predict the needs and wants of future generations; the
actual quantity of future persons is impossible to predict and thus
58
utility calculations are fruitless exercises. Finally, society “cannot
enter into an explicit contract with the community of the future”;59 it
cannot be sure which future generations will share its “altruistic
impulses and fellow-feeling” and thus be “members of [its] moral
community.”60
Actual experiences have rebutted some of these arguments, such
61
as society’s capacity to make predictions. Others are not unique; that
is, they “apply to cases that are both contemporary and morally
significant (i.e., such features as unidentifiability, improbability,
ignorance of number, ignorance of tastes and desires, and so on).”62
Although these arguments have some validity, future generations
should still be considered and protected in present-day
decisionmaking. Beyond the recognition of a moral commitment to
future generations, however, the biggest hurdle to realizing a political
55. Ernest Partridge, Introduction, in RESPONSIBILITIES TO FUTURE GENERATIONS, supra
note 46, at 1, 7.
56. Id.
57. Id.
58. Id.
59. Martin P. Golding, Obligations to Future Generations, in RESPONSIBILITIES TO
FUTURE GENERATIONS, supra note 46, at 61, 65.
60. Id. at 66.
61. Technology, for example, aids society’s predictive capabilities by allowing it to monitor
and model the planet’s environment. Thus
we are not totally blind to the consequences of the technical ventures now at work or
contemplated. Our age has witnessed not only a revolution in power but also a
revolution in communications and information processing. From satellites and
worldwide recording and transmitting stations, we monitor the pulse of the planetary
organism: the solar input, the hydrological and nutrient cycles, the climatic changes,
the patterns of land use, and so on. We know what is happening; and, with new
developments in computer modeling of complex integrated functions, we may be able
to discover the graver hazards that lie in the path ahead, both for us and for our
posterity.
Partridge, supra note 55, at 2.
62. Id. at 8.
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order that respects posterity interests is a positive one—how and why
future generations are not represented in political decisionmaking.
The next Section thus details some of the ways in which future
generations are not properly represented in policymaking processes.
B. The Existence and Causes of Intergenerational Inequity
Political action frequently does not match political rhetoric. “It’s
easy for people to feign concern for future generations and at the
63
same time rip them off.” And this problem is not unique to
hurricanes and levees. Daily newspapers are awash with examples of
this political “short-termism”—the failure of policymakers to
64
adequately deal with long-term problems. Although there is some
marginal concern for near future generations, “the future whispers
while the present shouts.”65 This results in an externality to future
66
67
generations, creating intergenerational inequity and potentially
long-run inefficiency. That is, present generations are given
preferential treatment over future generations, which may be
concerning from a distributive justice perspective or from an
economic efficiency perspective.
The preference for present-generation interests over future
interests is based on the observer. If one had no affiliation with the
present, one would not prefer present benefits over future benefits.
63. Walter E. Williams, Caring About the Future, TOWNHALL.COM, May 15, 2002, http://
www.townhall.com/columnists/WalterEWilliams/2002/05/15/caring_about_the_future.
64. See, e.g., Do-Nothing Decade, TIMES-PICAYUNE (New Orleans), Dec. 4, 2002, at B6
(climate change); Jed Graham, Delaying Social Security Reform Will Make Problems Far Worse,
INVESTOR’S BUS. DAILY, June 1, 2005, at A1 (social security); William C. Symonds, How to Fix
America’s Schools, BUS. WEEK, Mar. 19, 2001, at 66 (public education).
65. AL GORE, EARTH IN THE BALANCE 170 (1992). This does not mean that citizens are
not at all concerned with the effects their actions will have on posterity. Voters and politicians
often show sincere concern to their children and grandchildren. Ekeli, supra note 40, at 432. The
situation changes when focusing on more remote generations. Id. “In general, it seems to be
much more difficult to achieve popular and political support for tough policies that will benefit
the more distant future.” Id.
66. See E. J. Mishan, The Economics of Disamenity, 14 NAT. RESOURCES J. 55, 56–58
(1974) (defining external effects or “spillover effects” as a situation in which “person A’s utility
function . . . is affected by variables over which B, but not A, has control). For a response to the
argument that these “externalities” are really just necessary investment costs for the upward
trend in income per capita over time, see Jerome Rothenberg, Intergenerational Ethics,
Efficiency, and Commitment, in DISCOUNTING AND INTERGENERATIONAL EQUITY 103, 107
(Paul R. Portney & John P. Weyant eds., 1999).
67. This phenomenon need not only be experienced by distinct sets of individuals but can
also arise between present and future selves.
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American legislators, in contrast, have strong ties to the present and
thus have strong incentives to avoid dealing with future problems.
Thus, legislators do not deserve all the blame for their inaction. As
rational political actors, they are only making choices that will
promote their interests. “Because politicians are concerned with
getting reelected, they have limited time horizons, leading them to
‘prefer policies that yield tangible benefits for constituents in the near
term.’”68 A policy that will not ripen until after the next election (or
worse, after the actor’s political career) has about as much value as a
bank note that will not mature until several generations after its
holder’s death. “[P]oliticians in democratic states, who are elected for
relatively short periods and who are judged by voters largely in terms
of the immediate results of their actions, also have strong incentives
to overdiscount the future in the policy-making process.”69
Consequently, their viewpoints are necessarily shortsighted, and
future generations cannot intervene. “We act as we do because we
can get away with it: future generations do not vote; they have no
political or financial power; they cannot challenge our decisions.”70
71
Anthony Downs’s seminal work on the issue-attention cycle
demonstrates that a politician’s policy need only be effective—or give
the promise of effectiveness—for so long as the public is interested in
the issue.
Even if, down the road, the issue returns to the forefront of
political conversation, blame for the failure to deal with the issue
properly the first time is often misdirected at officials currently in
72
power. And if the public properly blames the responsible officials,
73
these officials probably are no longer in power; they can no longer
do anything about the problem. If the problem is to be solved, the
question becomes who is going to deal with it this time around. Thus,
American political society has grown accustomed to shirking the
weightier problems of the day, putting the problems off to a later time
68. Ben Depoorter, Horizontal Political Externalities: The Supply and Demand of Disaster
Management, 56 DUKE L.J. 101, 111 (2006) (quoting RICHARD A. POSNER, CATASTROPHE 137
(2004)).
69. Gregory S. Kavka & Virginia Warren, Political Representation for Future Generations,
in ENVIRONMENTAL PHILOSOPHY 21, 28 (Robert Elliot & Arran Gare eds., 1983).
70. BRUNDTLAND REPORT, supra note 54, at 24.
71. See Anthony Downs, Up and Down with Ecology: The ‘Issue-Attention Cycle,’ 28 PUB.
INT. 38, 38 (1972) (noting that public attention may generate public pressure to effect change).
72. Id. at 47.
73. Id.
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when the consequences for inaction are more immediate and the
range of options is more limited.
This discussion does not suggest that the legislative process does
not consider the interests of future generations. In fact, almost all
cost-benefit analyses take future costs and benefits into consideration,
irrespective of whether the costs and benefits will apply to present74
generation constituents or prospective ones. Some might apply what
economists call a discount rate, which compares the value of a future
75
preference to the value of a present one. But focusing on the
question of how to arrive at the proper discount rate, as seems to be
the concern of economists and legal scholars,76 ignores the larger
question of how to get political actors to concern themselves with the
costs and benefits to posterity and translate these concerns into policy
preferences. The proper discount rate matters only if it is the one
actually used to make—not just analyze—policy choices. In other
words, if policymakers read a policy report with a zero discount
rate—meaning that future preferences are weighed evenly with
present ones (ignoring inflation)—but then effectively discount the
future benefits in their policy actions, the discount rate is not
controlling.
74. But this is only true for the policy analysis. The legislator is then free to determine the
value to put on competing interests. Critical in this evaluation will be the way in which a cost or
benefit is likely to affect the legislator’s constituency.
75. For a fuller and more complete discussion of the economic principles behind
discounting, see generally Geoffrey Heal, Discounting: A Review of the Basic Economics, 74 U.
CHI. L. REV. 59 (2007). But at least one prominent report on climate change uses a discount rate
of zero, meaning that a future person is valued the same as a present person. See NICHOLAS
STERN, STERN REVIEW: THE ECONOMICS OF CLIMATE CHANGE 31–33 (2006), available at
http://www.hmtreasury.gov.uk./independent_reviews/stern_review_economics_climate_change/
stern_review_report.cfm (“We take a simple approach in this Review: if a future generation will
be present, we suppose that it has the same claim on our ethical attention as the current one.”);
see also William Nordhaus, Critical Assumptions in the Stern Review on Climate Change, 317
SCIENCE 201, 201 (2007), available at http://nordhaus.econ.yale.edu/nordhaus_stern_science.pdf
(concluding that the Stern Review’s proposal to move up the timetable on emissions reductions
as compared to other reports “stems almost entirely from its technique for calculating discount
rates and only marginally on new science or economics”).
76. See, e.g., Cass R. Sunstein & Arden Rowell, On Discounting Regulatory Benefits: Risk,
Money, and Intergenerational Equity, 74 U. CHI. L. REV. 171, 171 (2007) (“To be sure, costbenefit analysis with discounting can produce serious problems of intergenerational
equity . . . .”).
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II. THE ENVIRONMENTAL ETHICISTS’
POSTERITY-ORIENTED LEGISLATURES
The Preamble to the United States Constitution explicitly
references posterity:
We the People of the United States, in Order to form a more perfect
Union, establish Justice, insure domestic Tranquility, provide for the
common defence, promote the general Welfare, and secure the
Blessings of Liberty to ourselves and our Posterity, do ordain and
77
establish this Constitution for the United States of America.
Some scholars have called for a larger role for the Constitution’s
Preamble in the Supreme Court’s jurisprudence.78 The Court,
79
however, does not consider the Preamble precedent. Still, because of
its express reference to posterity, the Preamble seems the most
appropriate starting place for institutional reform.80
The idea of political representation of future generations through
the legislature is not new.81 There have been at least three calls for
“some seats in a democratically elected legislative assembly . . . to be
82
reserved for representatives of posterity.” The response, critical or
77. U.S. CONST. pmbl. (emphasis added).
78. See, e.g., Arthur S. Miller, Nuclear Weapons and Constitutional Law, 7 NOVA L.J. 21, 27
(1982) (“The time has come to think seriously about giving substantive content to the
preamble.”); Charlie Ogle, Executive Dir., Constitutional Law Found., Preamble: Relevance to
Environmental Law: Does the United States Constitution Provide Environmental Protection?,
Presentation at the L.A.W. Public Interest Law Conference at the University of Oregon (Mar.
7, 1998) (transcript available at http://www.conlaw.org/prearg2.htm) (arguing, in the context of
environmental policy, that “the Preamble most clearly lays out the vision and wishes of the
framers and adopters of the Constitution” and that “both the spirit and words of the Preamble
direct our government to protect the interests of posterity”).
79. See Jacobson v. Massachusetts, 197 U.S. 11, 22 (1905) (“Although th[e] Preamble
indicates the general purposes for which the people ordained and established the Constitution,
it has never been regarded as the source of any substantive power conferred on the Government
of the United States or on any of its Departments.”).
80. Professors James Buchanan and Gordon Tullock define a constitution as “a set of rules
that is agreed upon in advance and within which subsequent action will be conducted.”
BUCHANAN & TULLOCK, supra note 38, at vii.
81. See Kavka & Warren, supra note 69, at 21–39 (discussing “the question of political
representation for future people”).
82. Ekeli, supra note 40, at 430. This Note does not discuss a proposal made by Professor
Dennis Thompson for a “Tribunate (for Posterity),” Dennis F. Thompson, Democracy in Time:
Popular Sovereignty and Temporal Representation, 12 CONSTELLATIONS 245, 256–57 (2005),
because the approach is not developed well enough and it does not seem to be confined within a
legislature, instead acting more like an independent commission. This Note also does not
address related proposals to create age-differentiated political rights, proxy votes for children,
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83
confederate, has been fairly muted. This Part describes the three
proposals of the individual proponents separately to showcase the
range of forms a posterity-oriented legislature might take and to
examine the progression of the proposal.
A. Kavka and Warren’s Proposal
Professors Gregory S. Kavka and Virginia Warren were the first
scholars to propose designating legislative representatives for
posterity, although the two other proponents of that idea do not
acknowledge their contribution. Writing together in a volume on
environmental philosophy, Professors Kavka and Warren begin with
the premise that future generations are not represented in the
present-generation political conversation.84 They then move on to the
normative question of whether future generations ought to be
represented, concluding that
because the choices which democratic societies make now have
enormous impact on future generations, and because we collectively
know this and can make better than random guesses about the long-
or policies that encourage reproduction, all which would increase the proportion of children in
the voting population and thereby lessen the disproportionate impact older voters have in
political decisions. See Philippe Van Parijs, Rawls and Machiavelli: The Dream Team? (June
1998) (unpublished manuscript, on file with the Duke Law Journal) (discussing these
proposals).
83. See Kavka & Warren, supra note 69, at 21 (noting that even normative theories focus
on current interests, ignoring future people’s interest). Commentators have invoked the futureoriented legislature proposals, however, in discussions of deliberative democracy. E.g., AMY
GUTMANN & DENNIS THOMPSON, DEMOCRACY AND DISAGREEMENT 155–63 (1996)
(discussing “several different responses to the problem of representing future generations”);
Hans von Rautenfeld, Thinking for Thousands: Emerson’s Theory of Political Representation in
the Public Sphere, 49 AM. J. POL. SCI. 184, 191 n.8 (2005) (“Thompson lists possible
constituencies for elected representatives: the nation, a political party, the district as a whole,
the electoral majority in the district, and individuals who make direct appeals. This list is
expanded in Gutmann and Thompson to include future generations.” (citations omitted)).
Part of the explanation for the lack of exploration of future-generation representation is
that this subject lies at the crossroads of numerous academic disciplines. See Wolfe, supra note
30. Even when commentators are willing to take this problem head-on, a chasm remains
between the different disciplines. Ethicists argue why society should care for future generations
and even offer the mechanisms for this intergenerational altruism. Social scientists explain why
these preferences, when present, are muted in the traditional political landscape. But far less
attention has been paid to reshaping political institutions to better contemplate these long-term
preferences and thus to recognize the interests—and value—of future generations.
84. Kavka & Warren, supra note 69, at 21.
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SHADOWS OF FUTURE GENERATIONS
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range outcomes of different choices, it is appropriate at this time to
85
raise the question of political representation for future people.
Their proposal begins by responding to the theoretical objection86
87
that a present-generation party cannot represent future generations.
Citing legal examples of attorneys representing those without the
ability to express their interests, such as deceased persons or unborn
trust beneficiaries, Professors Kavka and Warren argue that the only
precondition of representation is that the represented “hav[e]
interests . . . capable of faring well or faring ill” at some point along
the time continuum.88 Regarding the concern of the inability to
represent the interests—with certainty—of those not yet born, the
proposal assumes the representative need only “know enough about
the likely interests of the represented party and the means of
promoting those interests, to be able to make better than random
judgments about how alternative policies are likely to affect the
interests of the represented party.”89
Finally, the article addresses some of the practical objections to
setting aside legislative seats for posterity interests, admitting that
“[i]t is likely to seem unacceptable to most people because it is novel,
sounds radical, has never been tried anywhere, and because it is not
90
clear how or whether it would work if put into practice.” In response
to its critics, the article lays out a concrete method by which a handful
of representatives in each chamber of Congress could serve the
interests of future generations: these representatives would advocate
posterity interests by performing the same tasks as any other
representative.91 The article proposes that presidential appointment
92
or national election would choose the future representatives.
85. Id. at 22.
86. See supra notes 55–60 and accompanying text.
87. Kavka & Warren, supra note 69, at 22–23.
88. Id. at 23–24 (emphasis omitted).
89. Id. at 25. The proposal also addresses the concern of including future generations in the
political process when so many other articulable groups or interests are still overlooked—
specifically, children, later selves, past citizens, and foreigners. Id. at 26–33. It concludes that
these interests are distinguishable from future generations. Id.
90. Id. at 34.
91. Id.
92. Id. at 34–35.
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B. Dobson’s Proposal
Unlike Kavka and Warren, who advocate for future generations
93
over other unenfranchised groups, Andrew Dobson frames his
proposal within the general goal of promoting political representation
of all unrepresented interests.94 As such, his article discusses the
representation—its democratic nature and specific design—of three
constituencies “that render problematic current understandings of the
way representative democracies should function”: nonnationals;
future generations; and “other species,” which might range from
nonhuman animals to the natural environment.95
In his section on future generations, Dobson quickly dismisses
the objections to the political recognition of future people and their
96
interests. “The big problem, though, is that future generations
97
cannot vote and can provide no representatives.” Therefore, he
proposes drawing proxy or substitute future generations from the
present generation.98 This proxy would serve as the electorate and
99
candidates would be drawn from it. As for who would comprise this
proxy future electorate, he proposes two options: (1) a random
sample of present generation voters; or (2) a lobbying group in the
present generation that is concerned about future generations, such as
the environmental sustainability lobby.100 The first option would
provide “no guarantee that the interests of future generations would
in fact be represented by such a random sample,” potentially leading
to present generations favoring their own interests when they conflict
and using the extra clout to serve their own needs.101 He thus favors
102
the second option, even at the expense of the democratic ideal of
keeping political power in the hands of ordinary people and out of the
hands of experts.103 According to Professor Dobson, sacrifice of this
93.
94.
Id. at 26–33.
Andrew Dobson, Representative Democracy and the Environment, in DEMOCRACY
AND THE ENVIRONMENT: PROBLEMS AND PROSPECTS 124, 124 (William M. Lafferty & James
Meadowcroft eds., 1996).
95. Id. at 124–25.
96. Id. at 131–32.
97. Id. at 132.
98. Id. at 132–33.
99. Id.
100. Id.
101. Id. at 133.
102. Id. at 133–34.
103. Id. at 134.
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particular ideal is justified because it is the only way to adequately
represent future generations and because it will provide the proxy
electorate with candidates who will actually represent future
104
generations. Professor Ekeli later terms Dobson’s approach the
“restricted franchise model” because it does not offer all voters the
right to elect F-representatives, instead reserving voting rights to
105
present-generation proxies for future generations.
Next, Dobson addresses the concern that the environmental
sustainability lobby, in advocating population growth measures, might
actually reduce the number of those they are supposedly
106
representing. He responds that (1) environmentalists disagree on
population growth and that their disagreement would play out in a
healthy democratic forum, and (2) future generations “will at least be
in favour of policies that guarantee them the environmental
107
conditions within which to exercise their political autonomy.” As to
how future interests would be analyzed, he quickly dismisses
discounting because “there is no discernible reason for regarding
future human beings as any less equal than present ones, in which
case representing their interests indirectly through present generation
sympathizers amounts to an injustice.”108
C. Ekeli’s Proposal
Building off of Dobson’s model, Professor Ekeli proposes a more
109
expansive version of posterity representation in the legislature. He
justifies this model with general concern that deliberative democracy
is illegitimate without posterity’s voice and without the added value
the representations of future generations would bring to policy
decisions.110 Specifically, Professor Ekeli proposes that “some seats in
the legislative assembly (for instance 5 percent) should be reserved
111
for future generation representatives.” The general voting populace
would
elect
these
future-generation
representatives
(F104. See id. at 133 (suggesting that a lobbying group will present “a real range of options to
choose from and therefore the alternatives, in the guise of proxy candidates, necessary for
accountability to be meaningful will be available“).
105. Ekeli, supra note 40, at 434–35.
106. Dobson, supra note 94, at 133.
107. Id. at 133–34.
108. Id. at 135.
109. Ekeli, supra note 40, at 430–31.
110. Id.
111. Id. at 434.
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representatives), who would then function as ordinary legislators.
With each voter having two votes—one for the presentrepresentatives and one for the F-representatives—the candidates
would attempt to sway them by “present[ing] the ends and means
they will advocate in the legislative assembly so that the electorate
would have the opportunity to consider their political programs.”113
In addition to these requirements, Professor Ekeli would allow a
supermajority of F-representatives to delay, but not block, a proposal
for some period of time or until elections occur.114 Professor Ekeli
offers three reasons in support of his “extended franchise model”: (1)
expertise about future-oriented issues will improve the public
dialogue, (2) F-representatives will serve as stewards of future
generations in present political decisionmaking processes, and (3)
political institutions will be more future oriented.115
All three sets of proposals share the common idea that future
generations should be represented in a legislature by representatives
elected solely to identify and stand for their interests. The core idea is
similar to agency delegation in that it encourages consideration of
future interests; it even more closely resembles the notion of posterity
standing in that the future can be represented by present delegates.
III. CRITIQUING ENVIRONMENTAL ETHICISTS’
PROPOSAL AND SUGGESTING A POTENTIAL ALTERNATIVE
Section A begins by critiquing the environmental ethicists’
proposal to create a posterity-oriented legislature. Section B then
uses these lessons as a springboard to propose a different way to
encourage legislators to consider posterity’s interests. It advocates
creating a performance-based pension system that rewards (and
punishes) legislators for policy choices based on the long-term
outcome of those choices and how those choices are predicted to
affect the future.
112.
113.
114.
115.
Id.
Id.
Id.
Id. at 441.
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A. The Promise and Shortfalls of the Environmental Ethicists’
Posterity-Oriented Legislatures
This Section critiques the idea of posterity-oriented legislatures,
which have largely avoided review.116 It first addresses several major
questions regarding posterity-oriented legislatures. These questions
range from how many F-representatives to elect to how to hold these
representatives accountable. It then addresses some of the potential
political effects, both discursive and instrumental, that might result
from implementing posterity-oriented legislatures.
1. Theoretical and Practical Concerns. Many of the concerns
with F-representatives depend on how they would be structured.
There are a number of theoretical and practical questions.
a. The Number of Representatives to Be Apportioned to Future
Generations. What is the proper role of discounting the political
equality of future generations? If the representative is truly
representing all future generations and not just one future generation,
the claimed constituency will dwarf the present-generation
constituency.117 Given the massive size of this future-generation
constituency, there must be a compromise between the desire to give
future generations political equality with present generations and the
desire to ensure that present generations retain a political voice. Such
a compromise might employ a type of discounting so that “[future]
representatives in present parliaments will be many fewer in number
than the numerical weight of their interests would warrant.”118 On the
other hand, an inadequate apportionment of F-representatives would
continue to prevent future generations from having any opportunity
to influence policy or even block potentially harmful decisions.119 If a
compromise cannot be reached that balances the intergenerational
120
competition of political power, the model becomes untenable.
b. F-Party Membership. Professor Ekeli proposes that future
parties (F-parties) would be able to put forward F-candidates, and
116.
117.
118.
119.
120.
But see id. at 434–35 (critiquing Dobson’s model).
Dobson, supra note 94, at 135; Ekeli, supra note 40, at 442.
Dobson, supra note 94, at 135.
Ekeli, supra note 40, at 442.
Id.
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these F-parties’ establishment would be regulated by “inclusive”
norms, which would incorporate diverse viewpoints but would also
121
prevent powerful interest groups from exploiting the system. In a
footnote, Professor Ekeli refuses to define the legal standard for Fparty membership, instead passing that question to “democratically
elected legislators.”122 But Professor Ekeli seems to trust the very
same legislators whose political livelihoods depend on currentgeneration voters and who cannot resist the coercive influence of
special interest groups. If legislators were allowed to define the legal
standard for these parties, they would likely do so with these
constituencies in mind.
Under Professor Ekeli’s model, in addition to these interest
groups, present-generation political parties also would be excluded
123
from the list of eligible F-parties to prevent duplicity. From the
124
statements made in the three proposals, it seems that only those
that lack sufficient influence in the traditional regime, such as perhaps
the sustainable development lobby, would be eligible to establish Fparties. But if only the disenchanted are allowed to form these Fparties, they might seize this opportunity to represent their own
short-term needs.125 A system in which present-generation voters
could directly choose these F-representatives would increase
accountability and democratic legitimacy but also decrease the
possibility of enfranchising the disenfranchised.
c. F-Representatives’ Electorate. Professor Ekeli argues that
Professor Dobson’s model is countermajoritarian because it allows
certain elites to have twice the number of votes as the rest of the
121. Id. at 437–38.
122. Id. at 438 n.11. Ekeli also states that these norms would be enforced by judicial review,
although he admits the paradox of giving unelected judges this discretion to make the law. Id. at
438.
123. Id. at 438–39.
124. See supra Part II.
125. The value of having agencies do the cost-benefit analysis is that special interest groups
cannot as easily influence the administrative rulemaking process. The price of the insulation
from special interest is a loss of direct accountability in having unelected officials develop
policies. There is still, however, a possibility of the regulated industry exerting control over the
regulatory process—agency capture. See MANCUR OLSON, THE LOGIC OF COLLECTIVE
ACTION 3 (2d ed. 1971) (providing the classic definition of agency capture); see also JeanJacques Laffont & Jean Tirole, The Politics of Government Decision-Making: A Theory of
Regulatory Capture, 106 Q.J. ECON. 1089, 1094 (1991) (developing a model that evaluates the
role of interest-group power and agency politics on the extent of agency capture).
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SHADOWS OF FUTURE GENERATIONS
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126
electorate. Dobson suggests that a lobbying group or even a random
sample of the population should elect the F-representative.127 This
method, Professor Ekeli argues, would violate the historic and
128
constitutional concept of voting power equality.
Professor Ekeli’s model solves this problem by giving everyone
two votes: one for a present-representative and one for a future
129
representative. Although this approach maintains political equality,
it assumes that present generations will somehow be able to
distinguish future-oriented concerns from their own short-term needs.
The notion that present-generation voters will elect representatives
who are concerned with future interests, without further restraint on
the voters or the representative pool, is a fiction because voters tend
to discount long-term benefits in favor of short-term ones.130
Even if the F-representatives were not at all concerned about
present public opinion, it would be irresponsible for F-representatives
to support legislation unlikely to garner “public support over the long
haul,” as the scheme probably would not achieve the goals of the
131
legislation if future generations then excised it. Because it is
unlikely that voters would opt for future over present needs, without
some incentive, Professor Ekeli’s proposal would monitor the
election of F-representatives so that the choice would be between the
greater of two goods. But this choice is dependant on the quality of
candidates running to be F-representatives.
d. The F-Representatives. If the electoral system limits the
candidacy of F-representatives to individuals with certain qualities
(Dobson, for example, might limit candidacy to the sustainable
126. Ekeli, supra note 40, at 435.
127. Dobson, supra note 94, at 132–33.
128. See Gray v. Sanders, 372 U.S. 368, 381 (1963) (“The conception of political equality
from the Declaration of Independence, to Lincoln’s Gettysburg Address, to the Fifteenth,
Seventeenth, and Nineteenth Amendments can mean only one thing—one person, one vote.”);
Ekeli, supra note 40, at 434–35 (describing Dobson’s model as one of “restricted franchise”
because the environmental sustainability lobby elects the F-representatives). Dobson’s model
would give some members of the electorate more than one vote and thus violate the “one
person, one vote” rule. See Gray, 372 U.S. at 381 (laying out the rule).
129. Ekeli, supra note 40, at 434.
130. See SAMUEL MERRILL & BERNARD GROFMAN, A UNIFIED THEORY OF VOTING:
DIRECTIONAL AND PROXIMITY SPATIAL MODELS 130 (1999) (describing “the Grofman
discounting model in which voters evaluate candidates by proximity but only after discounting
their claims or their capacity to move the status quo to their preferred policy position”).
131. FARBER, supra note 38, at 153, 157.
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132
development lobby ), it would have to judge which type of ideology
best represents posterity.133 The problem with this solution is that it
mutes public discourse on how best to solve future-oriented problems
and gives one particular lobbying group a tremendous amount of
influence.134 As Professor Ekeli notes,
[e]nvironmental organizations not only make special claims to care
about posterity, but also express particular views on what this
involves—views that are open to debate. They normally assume that
some form of environmental protection best realizes the interests of
future generations, where their more technologically optimistic
opponents might claim that this will not serve future interests at all.
Much of the debate between environmentalists and their opponents
is not about whether we should be concerned about future
generations, but how we should meet their interests.
135
Environmentalists represent just one strand in that debate.
In addition to the problem of drawing F-representatives from a
particular candidate pool, these F-representatives might also begin to
share the same short-term political concerns fatal to presentgeneration legislators. In response to the concern that Frepresentatives will spend their time in office pandering for votes in
the next election, Professor Ekeli considers limiting F-representatives
to one term in office although he ultimately rejects the term-limit.136
But this would not solve the problem, because voters would simply
shift their retrospective voting behavior from candidate centered to
party centered.137 Furthermore, this would undermine any
accountability that installing F-representatives in the legislature
would offer.
e. Considerations of F-Representatives. As Professor Ekeli
notes, determining what should be done about the future is based on
shaky and controversial evidence, such as questions of what values to
consider and how much weight to give those values, and difficult
132. Dobson, supra note 94, at 133.
133. See Ekeli, supra note 40, at 436 (describing a system in which the electorate is forced to
vote for candidates that are the most likely to promote the interests of future generations).
134. Id.
135. Id. (footnote omitted).
136. Id. at 439–40.
137. See JOHN H. ALDRICH, WHY PARTIES? THE ORIGIN AND TRANSFORMATION OF
POLITICAL PARTIES IN AMERICA 48–50 (1995) (“The candidate’s party affiliation . . . provides a
very inexpensive way to infer a great deal . . . .”).
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138
moral and political concepts. But this might be a reason to prefer Frepresentatives. The uncertainty associated with considering future
interests may be more palatable in a legislative setting that sometimes
requires soft decisions.
As to the extent to which society should weight the interests of
posterity, ethicist Daniel Callahan offers the following possibilities:
a.
b.
c.
d.
Do nothing which could jeopardize the very existence
of future generations.
Do nothing which could jeopardize the possibility of
future generations exercising those fundamental rights
necessary for a life of human dignity.
If it seems necessary, in the interests of the existing
rights of the living, to behave in ways which could
jeopardize the equivalent rights of those yet to be
born, do so in that way which would as far as possible
minimize the jeopardy.
. . . [C]alculate . . . whether an act with uncertain
consequences would be harmful to one’s own children.
If you would not conjure up the possibility of magical
solutions occurring to save your own children at the
last moment from the harmful consequences of your
gambling with their future, do not do so even with
139
future generations.
The choice of norms greatly affects the outcome and effectiveness of
the proposal.
f. Holding F-Representatives Accountable. The value of having
F-representatives in a legislature is that they might be accountable to
the interests of posterity. Without this accountability, the ability of Frepresentatives to effectively represent future interests breaks down.
In his classic text, Professor H.B. Mayo simplifies the concept of
140
democratic representation to three simple requirements.
Democratic representation exists when there are “(a) legislators (or
decision-makers) who are (b) legitimated or authorized to enact
public policies, and who are (c) subject or responsible to public
138.
139.
Ekeli, supra note 40, at 437.
Daniel Callahan, What Obligations Do We Have to Future Generations?, in
RESPONSIBILITIES TO FUTURE GENERATIONS, supra note 46, at 73, 83–84.
140. H.B. MAYO, AN INTRODUCTION TO DEMOCRATIC THEORY 103 (1960).
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141
control at free elections.” The problem for the posterity-oriented
legislature proposal is that those whose interests the decisionmaker is
representing are not the same as those who are holding the
representative accountable. If that is so, are the representatives only
representing the current interests of those who elect and reelect
them?
2. Mixed Ex Ante Political Effects. Additionally, implementing
a posterity-oriented legislature likely would have drastic and difficultto-predict implications for the traditional political process. This
Section describes what some of these effects might be.
First, the presence of a posterity-oriented legislature with its Frepresentatives might enhance the political conversation by forcing
discussion of future-oriented issues.142 The double vote—voting once
for a present-representative and once for an F-representative—would
“promote more regular public debate about environmental problems
in general and issues affecting the near and distant posterity in
143
This might prove effective because “there is
particular.”
considerable evidence that people’s preferences and perspectives
change in response to inputs of additional information—particularly
during political campaigns. If these assumptions are correct, the
double-vote can make the interests and needs of future generations
more ‘imaginatively present’ in the minds of the voters.”144
Implementing F-representatives might also affect presentoriented legislators and their strategy. Many legislators rely on the
ability to point fingers at previous administrations or regimes to
deflect criticism.145 Their related ability to defer action on important
policy issues that affect future generations functions as a political
externality, “the ability of some groups to use the power of
government to transfer benefits to themselves without being forced to
141.
142.
Id.
See John Ferejohn, Instituting Deliberative Democracy, in DESIGNING DEMOCRATIC
INSTITUTIONS 75, 98 (Ian Shapiro & Stephen Macedo eds., 2000) (“Reforming electoral
institutions to ensure a broader representation of views within legislatures would . . . make
public deliberation more informative to nonparticipants.”).
143. Ekeli, supra note 40, at 440.
144. Id.
145. See, e.g., Depoorter, supra note 68, at 116–17 (describing how public officials used the
“blame game” following Hurricane Katrina to reduce political accountability).
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SHADOWS OF FUTURE GENERATIONS
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146
pay compensation to the losers.” Thus, bringing the generations into
the same time space would force legislators to address futuregeneration issues head-on.147
At the same time, there is also a risk that F-parties and their
representatives will take on too great an influence in parliamentary
politics. If introducing F-representatives prevents either one of the
major political parties from garnering a governing majority in the
legislatures, these present-generation parties may be forced to form
coalitions with a minority F-party or parties, thus making the Fparties kingmakers.148 This is a common scenario in countries that
have proportional-representation voting systems that lead to
149
multiparty legislatures. If this were to occur, it might actually give
the F-parties too much power and upset the previously agreed-on
balance between present and future interests.
Finally, present generations may be more carefree and assume
that posterity’s interests are represented elsewhere, thus excluding
those interests from their decisionmaking calculus. If this occurs, then
posterity-oriented legislatures have the perverse effect of making
policies less attractive to posterity. In this situation, Professor Ekeli’s
dependence on the deliberative democracy model150 would actually
hurt posterity by giving decisions added legitimacy because of the
supposed representation of future generations.
There are real limits on the extent to which present generations
are willing to relinquish power to future generations. Even if present
generations are somewhat interested in looking out for future
146. Todd J. Zywicki, Baptists?: The Political Economy of Environmental Interest Groups,
53 CASE W. RES. L. REV. 315, 320 (2002); see also Depoorter, supra note 68, at 108–10
(extending political externalities to the relationship between political actors across different
levels of government).
147. See Depoorter, supra note 68, at 119 (describing these “political accountability
deadweight losses”).
148. See Pippa Norris, Choosing Electoral Systems: Proportional, Majoritarian and Mixed
Systems, 18 INT’L POL. SCI. REV. 297, 310 (1997) (“[P]roportional elections can produce
indecisive outcomes, unstable regimes, disproportionate power for minor parties in ‘kingmaker’
roles, and a lack of clear-cut accountability and transparency in decision-making.”).
149. Wolfgang C. Müller & Kaare Strøm, Coalition Governance in Western Europe: An
Introduction, in COALITION GOVERNMENTS IN WESTERN EUROPE 1, 1 (Wolfgang C. Müller &
Kaare Strøm eds., 2003) (“Multi-party politics has become the twentieth-century norm. And inmulti-party systems . . . the possibility always exists that no party alone will command a
parliamentary majority. Indeed, that possibility has become the rule, rather than the exception,
in the majority of the world’s parliamentary systems.”).
150. See Ekeli, supra note 40, at 442–47 (evaluating proposals for the representation of
future generations from the point of view of the deliberative democracy doctrine).
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generations, a free-rider problem would result. Not only would one
be better off if a previous generation started implementing this value,
151
one would be worse off if one’s own generation began this trend.
Therefore, no generation would have an incentive to incorporate this
system and, if implemented, every generation would have an
incentive to shirk its duty to future generations. The future
generation cannot force the present generation to consider its
interests any more than the present generation can punish past
generations for not considering its interests.
B. An Alternative Proposal: Tying Policy Outcomes to Legislators’
Pensions
One way of addressing the problem of policy myopia and
indifference toward future generations is to affect the decisional
calculus of policymakers. Legislators normally are motivated to
provide constituency services and to vote on legislative proposals in
ways that assure their reelection.152 As such, even an ideological claim
of looking out for posterity interests will succumb to the short-term
153
political realities. Incumbents not seeking reelection or without a
competitive challenger may have somewhat greater autonomy over
policy choices, but they still have no incentive to represent future
generations.
The proposal laid out in this Section gives incumbents that
incentive. Members of Congress continue to enjoy a fairly generous
154
pension plan. A National Taxpayers Union Foundation study
151. Consider the creation of a pension system. If retirees receive benefits without having to
pay into the system, they are unjustly enriched. If the program abruptly stops—or becomes
insolvent—members of the labor force have paid into the system with no corresponding benefit.
A posterity-oriented legislature creates this same unfairness on the front end and the back end,
but only in reverse (that is, past generations pay the benefits, and present generations pay into
the system for future generations).
152. This focus on the short term can create poor results in the long run:
Inattention and ignorance cause voters to notice (and oppose) only those policies that
would impose large, direct short-term costs. Unfortunately, such policies . . . may
benefit the general public in the long term, and an officeholder’s responsiveness to
these narrow concerns serves the official’s reelection imperative more than the
public’s interests.
JOHN GASTIL, BY POPULAR DEMAND: REVITALIZING REPRESENTATIVE DEMOCRACY
THROUGH DELIBERATIVE ELECTIONS 3 (2000).
153. See supra Part I.B.
154. PATRICK J. PURCELL, CONG. RESEARCH SERV., RETIREMENT BENEFITS FOR
MEMBERS OF CONGRESS 1 (2007); see also Peter J. Sepp, Congressional Perks: How the
Trappings of Office Trap Taxpayers, NAT’L TAXPAYERS UNION FOUND., Nov. 1, 2000,
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estimates that the Congressional pension plans are two to three times
more generous than plans of similarly situated employees in the
155
private sector. These plans are a benefit that does not depend on
156
the manner in which a member of Congress served. As of 2007,
even members convicted of most types of felonies still qualified for
the pension plan.157
This Note proposes an alternative that would change the pension
system by tying the pension payments to the outcomes—or the more
refined projections—of policies developed, sponsored, or voted for by
the legislator while in office. Although measuring the performance of
a legislator may be imperfect, it would be possible to create metrics—
specific measures by which to judge the long-term effectiveness of a
particular policy initiative158—for the policy itself and thus reward (or
punish) the proponents (or opponents) of the particular bill.
Politicians frequently embed accountability mechanisms into their
policies;159 under this proposal, they would be holding themselves
accountable rather than other actors.
http://www.ntu.org/main/press.php?PressID=343&org_name=NTUF (describing the “perk[s]”
that members of Congress enjoy by virtue of their pension plan); Allen Wastler, Congress’
Pension: Nice and Secure, CNNMONEY.COM, Jan. 20, 2006, http://money.cnn.com/2006/01/20/
commentary/wastler/wastler/index.htm (describing the generosity of Congress’ pension plan).
155. Sepp, supra note 154.
156. PURCELL, supra note 154, at 1–2.
157. See 5 U.S.C. § 8312 (2006) (listing felonies that disqualify government employees from
retirement benefits); PURCELL, supra note 154, at 13 (“Section 8312 of Title 5 provides that a
federal employee, including a Member of Congress, may not receive a retirement annuity for
any period of federal service if that individual is convicted of certain offenses that were
committed during the period of service when the annuity was earned. In general, the crimes that
would lead to forfeiture of a federal retirement annuity under this provision of law are limited
to acts of treason and/or espionage.”); see also Drew Griffin & Kathleen Johnston, Pensions for
Convicted Lawmakers Draw Watchdogs’ Ire, CNN.COM, Jan. 6, 2007, http://www.cnn.com/2007/
POLITICS/01/03/congressional.pensions/index.html?eref=rss_topstories (recounting the efforts
of two dozen watchdog groups to “stop making taxpayers pay the pensions of lawmakers who
are convicted of or plead guilty to crimes committed while in office”).
158. Professor Thompson suggests something similar, called “[p]osterity [i]mpact
[s]tatements,” which would “justify[] any adverse effects their actions might have on the
democratic capacities of future sovereigns . . . [and] show that [the Government’s] actions were
necessary to implement the will of a current majority, and that no other actions less restrictive
of future majorities could achieve this end at reasonable cost.” Thompson, supra note 82, at 257.
159. See, e.g., Federal Funding Accountability and Transparency Act of 2006, Pub. L. No.
109-282, 120 Stat. 118 (to be codified at 31 U.S.C. § 6101 note); No Child Left Behind Act of
2001, Pub. L. No. 107-110, 115 Stat. 1425 (2002) (codified as amended primarily in scattered
sections of 20 U.S.C.); Amtrak Reform and Accountability Act of 1997, Pub. L. 105-134, 111
Stat. 2570 (codified as amended in scattered sections of 49 U.S.C.); Health Insurance Portability
Act of 1996, Pub. L. No. 104-191, 110 Stat. 1936 (codified in scattered sections of 26, 29 and 42
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Every individual vote could be essentially converted into a
futures commodity. Voting for or against a bill would entail the same
cost initially. The price of this commodity would then fluctuate based
on the likelihood of reaching the policy’s embedded expectations.
These futures contracts could be traded freely among both current
and former legislators to ensure that the price is a fair predictor of the
expectations. If, for example, Policy A was up for a vote, purchasing a
“yea” vote would cost $100 and purchasing a “nay” vote would cost
$100. Policy A would include in the statutory language a set of longterm expectations and metrics by which to measure these
expectations or some other proxy for the predicted impact of the
policy. As time passed, the “yea” and “nay” vote commodities for
Policy A would change in value, depending on the likelihood of these
expectations being realized. If Policy A was a cap-and-trade program
that successfully reduced carbon emissions consistent with
expectations, then the “yea” vote would be worth more, and
legislators that had this vote in their portfolios would ultimately
receive larger pension payments. Conversely, those that opposed this
bill would see a corresponding decrease in the value of their portfolio.
The initiation of a future commodities contract could only occur
during the legislative vote to prevent legislators from waiting to see
the policy’s impact before determining what type of contract to
purchase—a “yea” contract or a “nay” contract. But legislators could
trade or buy other legislators’ contracts. They might even be bundled
so that consistent votes on similar policies would share the same
market and thus improve fluidity. The legislature might also
determine how much value each initial vote should have and whether
the purchase price should vary depending on the importance of the
policy being discussed.
This proposal might initially seem a far-fetched scheme, but a
similar experimental market already exists in the Iowa Electronic
Market (IEM).160 The IEM “is a real-money, small-scale futures
exchange in which the ultimate values of the contracts traded are
U.S.C.); Personal Responsibility and Work Opportunity Act of 1996, Pub. L. No. 104-193, 110
Stat. 2105 (codified as amended in scattered sections of 8 and 42 U.S.C.); Government
Management Reform Act of 1994, Pub. L. No. 103-356, 108 Stat. 3410 (codified as amended in
scattered sections of 31 U.S.C.). Additionally, Justice White’s dissenting opinion in INS v.
Chadha, 462 U.S. 919 (1983), listed more than fifty statutes in which Congress used a legislative
veto to check administrative agency discretion, id. at 1003–13 (White, J., dissenting), a practice
that the Court held unconstitutional in Chadha, id. at 959 (majority opinion).
160. Iowa Electronic Markets, http://www.biz.uiowa.edu/iem/ (last visited Apr. 31, 2008).
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SHADOWS OF FUTURE GENERATIONS
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determined by political events, financial events and economic
161
indicators.” Like a real market, investors use their own money to
trade listed contracts for loss or profit.162
Each contract to be listed on the IEM is defined in terms of a name
(to uniquely identify the contract), a “fundamental” on which the
contract is based, an expiration date, and a liquidation value. The
fundamental consists of some statistic or set of statistics which can
be objectively measured, and the liquidation value will depend upon
the value of the fundamental on some pre-specified date. Typically,
each contract will be part of a set of contracts, and all contracts in a
163
set will be based on the same fundamental.
This Note’s proposal would function similarly; the
“fundamental” would be the set of expected outcomes embedded in
the legislation and those opposing the legislation would function as
the other side of the contract. There might also be a way to structure
legislation so that if it is a revenue-generating activity (like building a
toll road), legislators could earn a percentage of the proceeds.
The system would not be mandatory; instead, legislators could
opt in. But with such an arrangement, legislators could translate their
164
rhetorical concern for future interests into expectations of what
their policies will do for these future generations. From these
expectations, the legislators could then determine what the
consequences to their pensions would be if the policies do or do not
meet these expectations.
Some legislative initiatives would likely extend beyond a given
legislator’s career. Even if initiatives such as these were still ongoing
when a legislator retired, the likelihood of future effectiveness could
still be gauged to some extent and the past policy action valued
accordingly. Thus, political accountability would extend even beyond
the legislators’ retirement. Finally, there may be constitutional
165
problems to this proposal, such as legislative entrenchment, that
would require a constitutional amendment for resolution.
161. Iowa Electronic Markets, IEM Basics: What Is the IEM?, http://www.biz.uiowa.edu/
iem/trmanual/IEMManual_1.html#What (last visited Apr. 31, 2008).
162. Id.
163. Iowa Electronic Markets, Objects Traded in the IEM: What’s Traded, http://www.biz.
uiowa.edu/iem/trmanual/IEMManual_2.html#What (last visited Apr. 31, 2008).
164. See supra text accompanying notes 20–24.
165. See Fletcher v. Peck, 10 U.S. (6 Cranch) 87, 135 (1810) (“[O]ne legislature is competent
to repeal any act which a former legislature was competent to pass; and . . . one legislature
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This proposal is not a silver bullet. For example, although it
would be unnecessary to decide ahead of time how much weight to
give future interests, the extent to which future outcomes affected
legislators’ pensions would implicitly create a discount rate. Thus,
present-generation representatives would have to determine the
value of the future-generation benefits in the accountability system.
But there determination would be transparent.
On balance, this proposal more ably addresses or avoids the
concerns laid out for posterity-oriented legislatures. First, it would
not need to decide F-parties or F-voters —and thus no double-voting
issue would present itself—because the traditional electoral system
remains intact. What would—hopefully—change is the political
discourse. Considerations of future interests would not merely be a
legislative issue; they would become a campaign issue. How
candidates consider future interests and to what extent they factor
into issue positions would affect the present-generation electorate’s
voting behavior. But instead of relying on inflated rhetoric, voters
would base decisions on tangible proposals with a built-in
accountability system. This accountability forces the legislators as
candidates to make some tough choices. They would be forced to
balance electoral pressures and ideological commitments with their
own financial security.
Second, the appropriate ideology for the representation of
posterity would remain a contested question. Any present-generation
representative could be a future representative. It would be an opt-in
system, so that if legislators did not want to disturb their defined
benefit, they would not have to “purchase” these commodities. Doing
so would be suspicious because it would essentially confess a lack of
interest in the future or at least demonstrate that the individual
legislator is very pessimistic about the chances that the legislator’s
supported policies would achieve their intended effects. This proposal
does not preordain what the future interests are or what the
cannot abridge the powers of a succeeding legislature.”); see also 1 WILLIAM BLACKSTONE,
COMMENTARIES 90 (“Acts of parliament derogatory from the power of subsequent parliaments
bind not. . . . Because the legislature, being in truth the sovereign power, is always of equal,
always of absolute authority: it acknowledges no superior upon earth, which the prior legislature
must have been, if it’s [sic] ordinances could bind the present parliament.”). But see Eric A.
Posner & Adrian Vermeule, Legislative Entrenchment: A Reappraisal, 111 YALE L.J. 1665, 1666
(2002) (“The rule barring legislative entrenchment should be discarded; legislatures should be
allowed to bind their successors, subject to any independent constitutional limits in force.”).
2008]
SHADOWS OF FUTURE GENERATIONS
1931
appropriate ideology to realize those interests is. Instead, it builds in
accountability by connecting present actors with future interests.
Despite these attributes, the proposed system would also have
flaws. First, it might encourage voters to reelect incumbents, creating
greater numbers of career politicians, because there would be an even
greater incentive to fight long policy battles to protect prior
investments in certain policy choices. Second, some of the
calculations necessary to realize this proposal might be unsavory. For
example, how much should the death of a soldier on the battlefield
cost a politician in retirement? Third, other calculations might be
difficult to make because it will be difficult to value some of the
policy’s aims. For example, what is the value of national security?
These problems are surmountable. The development of future
commodities markets such as the Iowa Electronic Market
demonstrates that the outcomes of a policy alter the pensions of its
166
supporters and opponents. Legislators (or more likely their staff)
could trade these credits and potentially even bequeath them to their
successors. The point is that the creation of this market would make
the future success of policies a commodity and tie politicians’ future
incomes to this commodity. They would have a real incentive to care
about future generations and monitor past policies so that they
positively affect their own interests and, consequently, posterity.
CONCLUSION
Despite the potentially “enormous impact” of legislative policies
on future generations, policymakers do not adequately consider
posterity’s interests when legislating. Although several environmental
ethicists have proposed the idea of assigning certain legislators to
represent posterity’s interests, the proposal has received little serious
attention from the legal academy. Although this critique does not
claim to be a comprehensive evaluation of the proposal’s promise and
flaws, this Note makes the persistent questions regarding this
proposal clearer and readier for resolution.
Whether society ultimately recognizes its obligation to future
generations and institutionalizes it in the form of a posterity-oriented
legislature is a question of policy and a question of ethics. It is easier
to accomplish this goal, though, if the proposal is more feasible and
effective. Linking legislative pensions to the performance of
166.
See supra notes 160–63 and accompanying text.
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legislative enactments while the legislator was in office would create
an accountability mechanism for present-generation legislators’
promises to future generations. By further developing this approach,
society may develop a system that encourages legislators to better
account for the impact policies have on future generations. In doing
so, present generations may better realize their commitment to
posterity.